“Quite Apart from Charter Considerations”: Constitutional Text and Unwritten Principles in City of Toronto (Alyn James Johnson)
This is a guest post by Dr. Alyn James Johnson on the Supreme Court of Canada’s recent decision in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34.
In Toronto (City) v Ontario (Attorney General) (2021 SCC 34) [“City of Toronto”], the Supreme Court of Canada attempts to put a leash on the use of unwritten constitutional principles. While many well-known 20th century precedents offer fairly expansive approaches to this subject (e.g. Reference re Remuneration of Judges of the Provincial Court,  3 SCR 3 at paras 83-109 [“Judges Reference”]; Reference re Secession of Quebec,  2 SCR 217 at paras 49-54), City of Toronto proceeds on the basis that the authority of these earlier decisions can be retained with a slight clarification that unwritten principles cannot impugn legislation on their own authority. A somewhat similar reigning-in was attempted in British Columbia v Imperial Tobacco Canada Ltd. (2005 SCC 49) [“Imperial Tobacco”], although the unanimity of that ruling has slipped to a bare 5-4 majority in City of Toronto.
Both City of Toronto and Imperial Tobacco rely on a strategy that can be referred to as the textual anchor theory: unwritten principles, it is said, can be used to challenge legislation only when they are anchored within the text of the Constitution. Justice Abella, in her dissenting opinion in City of Toronto, argues that the Court’s past decisions reveal a commitment to the view that in rare instances unwritten principles can in fact be used on their own to challenge legislative action.
In this post, I argue that the textual anchor theory is flawed. Simply put, it blurs a critical distinction between two very different types of constitutional provisions. Many provisions of the written Constitution have an express and relatively determinate normative content. By this I mean that they authorize an exercise of judicial authority in a fairly clear direction. The exact parameters of this exercise of authority may need to be refined, and unwritten principles can be employed in this regard. Nevertheless, the interpretive lines are clear: principles service text. There is an actual anchoring function going on here. Other provisions, however, have at best an inchoate or indeterminate normative content. There is no clear institutional relationship established. Making use of these provisions to explain the judicial deployment of unwritten principles is entirely unsatisfying. Far from anchoring interpretation, the very strong impression that arises when these provisions are invoked is that text is in fact camouflaging an analysis that is almost entirely dependent on an unwritten source of authority.
Section 2(b) of the Charter is a good example of a fairly determinate provision with express normative content. In Harper v Canada (Attorney General) (2004 SCC 33), the Supreme Court makes considerable use of the democratic principle to clarify the ambit of the freedom of political expression under section 2(b). The entire analysis, however, occurs within the substantive limitations that the text expressly places on legislatures. The essential structural relationship between the courts, the legislature, and citizens is established by the text. The unwritten principle operates in a supporting role.
Sections 91 and 92 of the Constitution Act, 1867 function in the same way in relation to the federalism principle. Once again, the text is relatively determinate, the normative lines of authority running between courts and legislatures are clear, and the principle supports the analysis, clarifying the scope of application.
An entirely different dynamic is encountered if one turns to section 17 of the Constitution Act, 1867. This provision simply establishes representative institutions. There is no overt or determinate normative content here inviting judicial action. Yet in his famous dissent in the Judges Reference (at para 318), Justice La Forest suggests that section 17 can be used to explain the conclusion drawn by members of the Supreme Court in the various “implied bill of rights” decisions that legislative power is limited by the democratic principle.
Justice La Forest found himself in a difficult position in the Judges Reference because his dissent stridently asserts that the legitimacy of judicial review is “imperiled . . . when courts attempt to limit the power of legislatures without recourse to express textual authority” [emphasis added] (para 316), yet he himself was part of the Supreme Court’s strongest statement of the “implied bill of rights” proposition in OPSEU v. Ontario (Attorney General) ( 2 SCR 2). In that earlier decision, Justice Beetz proclaims for the majority that “neither Parliament nor the provincial legislatures may enact legislation the effect of which would be to substantially interfere” with the “basic structure of our Constitution” (57).
OPSEU is the strongest statement in Canadian law of precisely the proposition rejected in City of Toronto, that is, that unwritten principles can, in certain rare circumstances, overrule legislation. The majority in City of Toronto notably avoids any discussion of OPSEU (Justice Abella, on the other hand, directly quotes the earlier case), and the majority in City of Toronto also avoids noting the express reaffirmation of OPSEU by the majority of the Court in the Judges Reference (paras 103, 108).
The point I wish to stress is that Justice La Forest’s recourse to section 17 to explain OPSEU is not convincing. Justice Beetz makes no mention of section 17 anywhere in his opinion, and instead goes out of his way to remove express text from the equation, stating that “quite apart from Charter considerations, the legislative bodies in this country must conform to these basic structural imperatives and can in no way override them” (57). But the most important point is that there is no determinate content in section 17 that can control and anchor an invocation of the democratic principle. Reasoning from the formal grant of representative institutions to a judicial power to control legislation is quite a journey, and it proceeds pursuant to a map drawn by the democratic principle. This is an entirely different situation from that discussed above in relation to section 2(b) and sections 91 and 92, where it can be genuinely said that unwritten principles (democracy; federalism) service, and are anchored in, text. Justice La Forest’s demand that judicial review must be anchored by “express textual authority” cannot be satisfied by section 17.
Canadian administrative law is another area where a weak or non-existent textual anchor is prominent. Section 96 of the Constitution Act, 1867 is of course the main problem. Section 96 is something of a Janus-faced provision. It has strong and express normative content in relation to federalism because it specifies the federal appointment of superior court judges. This express content is sufficient to anchor the body of case law emanating from Re Residential Tenancies Act, 1979 ( 1 S.C.R. 714) that limits the power of provincial legislatures. But section 96 lacks sufficient normative content in other critical areas where it has been invoked against legislation, for example, core jurisdiction, privative clauses, standard of review, and judicial independence. Significantly, all of these limitations on legislative power can be cogently drawn from the unwritten principle of the rule of law, and as recently as Canada (Minister of Citizenship and Immigration) v Vavilov (2019 SCC 65) [“Vavilov”], the Supreme Court appeared comfortable in relying on the rule of law as a constraint on legislative power in the area of standard of review (para 23). There is no sound reason to prefer an overextended textual provision such as section 96 to an entirely cogent unwritten principle. Text gains its authority because it is posited. Unwritten principles gain their authority because they are structurally mandated and functionally essential . If posited text does not clearly authorize a desired result, a court should either turn to an unwritten principle that is on point and that fills the gap consistent with the structure of the Constitution or conclude that the desired result is not possible.
Attempts to rely on normatively barren provisions such as section 17 or section 96 to perform work that is almost entirely based on unwritten principles places great strain on the written text of the Constitution. There is hardly a minor concern, and indeed is deeply ironic because the impetus behind decisions such as City of Toronto, Imperial Tobacco, and Justice La Forest’s dissent in the Judges Reference is positivist in nature. Legal positivism, going back to Hobbes and Bentham, stresses the importance of written legal authority and the certainty and publicity that comes from this authority rather than the uncertain vagaries of judges manipulating unwritten concepts. The textual anchor theory, with respect, often fails to take text seriously and distorts the very writing it is supposed to be defending. In place of the “express textual authority” that Justice La Forest maintains is required to render judicial review legitimate, the textual anchor theory, in its weaker manifestations, reduces written provisions of the Constitution to hollow and convenient receptacles in which to pour meaning properly derived from unwritten sources.
In order to be faithful to a positivist approach to textual authority, unwritten principles must be limited to servicing normatively determinate provisions of the text such as section 2(b) and section 91 and 92. To this list, one could add most of the other provisions of the Charter, section 53 of the Constitution Act, 1867, and section 35 of the Constitution Act, 1982.
If the Supreme Court wants to rely more broadly on legal rules that emanate from the normativity inherent in the democratic principle and the rule of law, on the other hand, the appropriate path is set out in decisions such as OPSEU, the Judges Reference, and the Secession Reference. As Justice Abella stresses in City of Toronto, these decisions lead to the conclusion that unwritten principles, grounded in the “architecture” of the Constitution, can, in certain instances, overrule legislation without a direct anchor in text.
My view is that the Constitution is infinitely richer and more theoretically coherent when the full force of “basic structural imperatives” is clearly acknowledged. Thus unwritten principles can indeed impugn legislation in certain instances where the structure of the Constitution is fully engaged.
If the contrary view is to be preferred, if, in other words, unwritten principles cannot overrule legislation without an anchor in the text, then that anchor must be firm. The loose textual anchor approach endorsed in City of Toronto devalues text and fails to acknowledge work that is actually done by unwritten principles. This state of affairs threatens the coherence of the entire constitutional edifice.
This content has been updated on October 25, 2021 at 14:37.